Voucher Plan for Disadvantaged Pursued in Kansas City Lawsuit

By William Snider — August 02, 1989 10 min read

A group of prominent school-law experts is backing a novel lawsuit that urges the creation of a voucher program to enable black schoolchildren in Kansas City to attend desegregated private schools at public expense.

The lawsuit, filed in federal court last month, represents the first legal test of an idea propounded in the 1970’s by two nationally noted school-finance reform advocates, John E. Coons and Stephen D. Sugarman, both currently professors of law at the University of California at Berkeley.

Since other efforts to desegregate urban districts have failed to eradicate all-black public schools, they argue, the only remaining means of providing students in those schools with a desegregated education is to enlist the private sector.

Kansas City provides the “perfect” location for a test case, according to Mr. Coons, because even under its school-desegregation plan, the nation’s most costly, “there is no place for these kids to go for a desegregated education in the public sector.”

The lawsuit seeks the creation of a voucher program for all black students in Kansas City “who are assigned to a public school which either remains racially segregated or which imposes upon black pupils burdens of travel or inferior education which are vestiges of unlawful segregation and whose6parents wish them to attend a desegregated private school.”

The action comes at a time when the district’s desegregation plan has failed to meet its goals and is under attack from a number of quarters.

The U.S. Supreme Court has agreed to hear an appeal of the most controversial aspect of the plan--a court-ordered property tax that helps the district meet its portion of the plan’s cost, which has been running at more than $100 million annually.

Should the district lose the case, the state would have to assume the city’s share of the financial burden.

A separate group of black plaintiffs has also mounted a new legal challenge to the magnet-school portion of the plan, charging that racial quotas for the magnet schools are preventing blacks from gaining admission because too few whites have applied.

The new voucher lawsuit is separate from the district’s longrunning desegregation case. Although the voucher idea’s supporters hope their case will remain separate, other lawyers familiar with both cases say their related nature makes it likely they will eventually have to be assigned to the same judge.

The new lawsuit will be argued by local lawyers, but members of the Lawyers Committee for Equal Rights in Education, of which Mr. Coons and Mr. Sugarman are members, are serving as what Mr. Coons termed “intellectual kibbitzers.”

“We provided some ideas, we encouraged the lawyers, we did some organizing,” he said.

Other members of the committee, a group formed last year to support school choice in the legal system, include Stephen Aarons, author of the 1982 book on the role of law in public education Compelling Belief; John Baker, a professor of law at Louisiana State University; William B. Ball, the lawyer who won an exemption for the Amish from the state’s power to compel schooling in the 1972 U.S. Supreme Court case Wisconsin v. Yoder; and Patricia Lines, a former official of the U.S. Education Department, among others.

Raises Legal, Policy Issues

The case’s unusual juxtaposition of desegregation law and vouchers raises a host of complicated legal and policy issues, according to lawyers familiar with it.

Its sponsors have identified and named more than 50 Kansas City private schools--all but one of which are operated by religious denominations--with more than 4,000 vacant seats that would be willing to accept students under the plan.

Black families wishing to enroll their children in one of these schools would receive an educational grant from defendants in the case--either the state or the school district--equal to the per-pupil cost at the school of their choice.

Opponents of the proposal insist that such grants would be prohibited under the First Amendment, which they say bars any system of public funding for religious education.

But the lawsuit argues that “any incidental benefit to religion would result solely from the private choice of individual parents.”

Both sides cite Supreme Court cases that they say uphold their views, but admit that no plan like that envisioned has been ruled on.

A ‘Limited Remedy’

The use of desegregation law adds an additional twist, noted both Mr. Coons and Stephen R. Miller, a local lawyer who is representing the black plaintiffs in the case.

Since the plan is narrowly tailored to benefit only victims of discrimination, they said, it should4pass constitutional muster.

Mr. Coons noted that Section 1983 of Title 42 of the U.S. Code, a Reconstruction-era civil-rights law, permits individuals to seek monetary damages as redress for discrimination.

The plan would also be limited to students who are currently enrolled in the public schools, they said, and would not provide grants to families whose children are currently enrolled in private schools. “It is a limited remedy designed to fit into the legal opportunity,” Mr. Coons said.

“It’s clearly unfair that other students won’t get it,” he added, ''but if you can right one wrong, you ought to right it.”

Unlike other voucher plans, according to Mr. Miller, the Kansas City plan does not pit private schools against the public schools.

“It’s a case of the private sector aiding the public schools,” he said. “We assume the court is going to look after the best interests of the district.”

The lawsuit states that the private schools have agreed to accept students “as space permits and upon criteria that are no more restrictive than the criteria employed by the [Kansas City district] and this Court.”

It also asks the court to declare that “the autonomy of private schools shall remain unaffected” by participation in the plan.

The schools will probably reconsider their participation in the plan if the court holds that they are subject to greater state supervision, the plan’s supporters acknowledge.

But Mr. Miller said he did not think the judge would do that, “because we want to minimize any kind of entanglement between the state and private schools.”

Central to the lawsuit’s success is its argument that the district’s current desegregation plan does not provide equal educational opportunities for all students, lawyers said.

Two lawyers who expressed qualified support for the suit’s intent said, however, that this contention may be its greatest weakness, because it is “too soon” to tell whether the comprehensive desegregation remedy ordered by the court will work.

Remedy’s Effects Debated

The voucher proposal’s supporters note that none of the surrounding suburban districts have accepted black students from the city under a voluntary interdistrict transfer plan governed by a court-approved formula that provides financial compensation to both the city and suburban schools for such transfers.

But others involved in the case say that the interdistrict plan has been delayed by legal and political squabbles, and that a new plan has recently been proposed by a court-appointed monitoring committee.

Among many proposals made in June by a subcommittee of that panel is a voucher plan similar but not identical to the one being advocated.

The district is also in the midst of efforts to convert all of its middle and high schools, and more than half of its elementary schools, into magnet schools designed to lure white students from private schools and the suburbs.

While the recruitment of white students has thus far been below expectations, lawyers familiar with the case said its presiding judge, U.S. District Judge Russell Clark, would be unlikely to impose additional remedies without giving his plan more time to work.

“Until the Supreme Court denied certiorari on the remedy [in May], there were people who believed that the remedy was not final and that it would be thrown out,” said Allen R. Snyder, a Washington lawyer who represents the district.

“Now these people are coming forward with new ideas, but you can’t treat a desegregation remedy like a disposable diaper,” he said. “You have to give it some time to work.”

‘Any Reasonable Potential’

Even if the plan were a proven failure, as the plaintiffs claim, experts say the federal courts have never accepted the argument that minority students in districts with a history of unconstitutional segregation have a “right” to a desegregated education.

Instead, they say, courts have generally accepted the most desegregation feasible, given a district’s demographic and geographic situation.

The new lawsuit, on the other hand, quotes an earlier decision in the case in arguing that “it is incumbent upon this court to further explore any reasonable potential for achieving further desegregation.”

It also argues that the minority students remaining in the city schools would benefit from the plan because the ratio of minority to nonminority students would be lower, enhancing the possibility that more whites could be recruited from the suburbs.

‘We Are Going To Oppose It’

In addition, the suit argues that the voucher plan would free dollars for the Kansas City schools, because the district’s per-pupil cost is more than twice the average cost at the private schools.

Neither the lawyer representingplaintiffs in the desegregation case nor any other civil-rights lawyers in Kansas City were willing to accept the case, according to Mr. Coons.

“We are going to strongly oppose it,” said Arthur A. Benson 2nd, the lawyer for the black plaintiffs in that case. “We believe the public-policy disadvantages far outweigh the benefits for Kansas City.”

Lawyers for the state and the school district say they have not yet taken a position on the case’s issues.

But Michael A. Fields, assistant attorney general for the state of Missouri, said the state has “concerns that have to do with the impact of these proposals on the magnet plan and the movement of the case towards unitary status.”

The state has been ordered to pay a large portion of the plan’s cost, he noted, and must continue to do so until the case is concluded.

Yet Another Challenge

Although the lawsuit asks for the voucher plan to be implemented this year, even its supporters admit that it will take a long time for the issues raised to be settled by the courts.

Of more immediate concern to the district and its students is the legal challenge filed last month to the racial quotas that govern admission to some 40 schools that are scheduled to be operating in the district this fall.

A motion to amend the quotas has been filed on behalf of black plaintiffs by the Landmark Legal Foundation, a conservative civil-rights group.

Less than 150 white students have applied for spaces in the district’s 47 magnet programs, leaving almost 3,000 spaces for white students unfilled, according to figures compiled by the district in May.

The problem is particularly acute in the 14 magnet programs scheduled to open this fall, which are subject to a court order requiring that their enrollments be 60 percent minority and 40 percent majority.

The district’s enrollment last year was 74 percent minority.

The lack of applications from white students for the new magnets has prevented the district from accepting thousands of minority students who are on waiting lists for the programs, the Landmark Foundation’s motion charges.

The motion asks the court to allow the district to admit minorities to the magnet programs to fill their available quota of seats regardless of the number of whites attending.

“The school district has the programs, it has hundreds of millions to improve the education of minority children, and yet they’re being denied access,” said Jerald L. Hill, a lawyer with the foundation.

At the same time, he noted, the district is having to consider reopening vacant buildings and utilizing portable classrooms to hold the students who have been bumped by the creation of the new magnet programs, which will have “hundreds, perhaps thousands of empty seats.”

The Kansas City board has not yet taken a position on the group’s motion. But the board generally opposes alterations to the quotas because it feels that “weakening the

The Kansas City board has not yet taken a position on the group’s motion. But the board generally opposes alterations to the quotas, a spokesman said.

Mr. Benson said last week that he would file a motion to disqualify Landmark’s representation of minority children “on grounds of real or apparent conflict of interest, because they also represent white taxpayers opposed to local funding of the desegregation plan.”

A version of this article appeared in the August 02, 1989 edition of Education Week as Voucher Plan for Disadvantaged Pursued in Kansas City Lawsuit